' The facts giving rise to this Constitutional petition shortly stated aft that the petitioner was allotted land measuring 10 Acres 3 Kanals and 4 Marlas in Chak No,351/GB, Tehsil and District Toba Tek Singh which comprised Square No,24 Killa Nos.4 to 7, 8/2, 14 to 17, 18/2 and 23/2 under Grow More Food Scheme by the Collector on 15-12-1956. According to him the same had been resumed as a consequence of it having come within five miles of the prohibited area. Similarly deceased husband of respondent No,4 was also allotted land in Chak No,319/JB under Grow More Food Scheme which was also resumed as a consequence of its having come in the prohibited zone.
According to the instructions issued through circular in 1969 such allottees were to be accommodated by giving them alternate land. The last date for submission of the applications for seeking allotment of alternate land was 28-8-1983. The case of the petitioner was that he made the first application on 29-12-1979 for seeking allotment of alternate land available in Chak No,351/GB which comprised Square No,76 Killa Nos.8, 3 to 13, Square No, 77 Killa Nos. 2, 3, 7, 8/1, 14, 19, 23, 24 Square No,25 Killa Nos. 1 and 10 Square No,10, Killa Nos.9, 13, 17, 25, Square No,27 Killa Nos.16, 15/2, 13/2, Square No,46 Killa Nos.6, 14, 15, 16, 25/1 and 25/2 measuring about 110 Kanals 10 Marlas which is the land now in dispute. This application according to him was not taken up for consideration for a long time having been misplaced in the office, therefore, he repeated another application which too was not taken up having also been misplaced. He made third application on 25-6-1983 which was rejected by the Collector, Faisalabad by order dated 25-5-1985. The appeal filed by the petitioner against the said order before the Commissioner was accepted through order dated 2-3-1986 and the case was remanded to the Collector for fresh decision. The case was fixed before the Collector on 16-8-1987 on which date the application of respondent No,4 for allotment of alternate land was also fixed along with another application filed by some other claimant. It appears that the case of respondent No,4 was taken up on the said date in a secret manner and an order was passed holding that respondent No,4 was eligible for allotment of the said land as alternate land without hearing the petitioner. Against this order the petitioner filed appeal before the Commissioner on 15-9-1987 as per certified copy of the grounds of appeal placed on the record by learned counsel for respondents Nos.4 and 5 today. This appeal was decided on 4-10- 1987 in the presence of learned counsel for the parties. On the statement of learned counsel for the petitioner to the effect that since in pursuance of remand order dated 2-3-1986 his case was pending before the Collector, therefore, he should be directed to decide the question of eligibility of the petitioner for getting alternate land and if such a direction had been issued he would be satisfied. The appeal was disposed of through order dated 4-10-1987 in the said terms and the Collector was directed to decide the case of the petitioner within one month. It may be observed here that before the said date i,e, on 4-10-1987 a formal allotment order in favour of respondent No,4 in pursuance of order dated 16-8-1987 had not been passed and the conveyance deed had not been executed and issued in his favour. The case of the petitioner even after this order was not taken up and considered by the Collector whereas in the meantime direction was issued by the Board of Revenue on 28-2-1988 to the Commissioner (Annexure IV) that in District Toba Tek Singh allotment orders had been passed fraudulently therefore, no further allotment order should be made or issued and the record should be sent to the Board of Revenue in order to determine the genuineness and legality of any order already passed. This letter was forwarded by the Commissioner to the Deputy Commissioner/Collector on 10-4-1988 (Annexure III). In spite of that the Collector passed formal order dated 18-4-1988 for allotment of land in dispute as alternate land in the name of respondent No,4. On the basis of this order a conveyance-deed was executed and issued to the said respondent on 12-5-1988.
2. Feeling aggrieved the petitioner challenged the order dated 18-4-1988 and the conveyance deed dated 12-5-1988 in appeal filed by him before the Commissioner which was dismissed on 17- 4-1989 on the technical ground that after the issuance of conveyance-deed no jurisdiction was vested with the Commissioner to undo the same as according to specific provisions of the Colonization of Government Lands (Punjab) Act, 1912 conveyance-deed could only be nullified and set aside by the Board of Revenue. The petitioner filed revision petition before the Board of Revenue which was rejected on 18-2-1991. He filed a review application seeking review of the said order which was also dismissed on 12-8-1992. The legality of all these orders and the proceedings in which they were passed have been called in question in this Constitutional petition.
3. It may be remarked here that respondent No,4 has further transferred the land to respondent No,5 who in defence has taken the ground that they were protected being bona fide purchaser for valuable consideration without notice.
4. Learned counsel for the parties has been heard. Faiz Ahmad Colony Clerk D C. Office, Toba Tek Singh is also present. The record had earlier been summoned which is also available and examined with the assistance of learned counsel for the parties. It is manifest from the above facts that so far as the petitioner was concerned his case was neither. Examined nor decided in comparison with the case of respondent No,4 both had been deprived of their land originally allotted to them for similar reasons under Grow More Food Scheme and according to the instructions both of them applied for allotment of alternate land which is the land in dispute. It was appropriate that the applications of both of them should have been decided after hearing them at one and the same time through a consolidated order. The case of the petitioner had been remanded by the Commissioner through order dated 2-3-1986 which was pending when order dated 16-8-1987 was passed in favour of respondent No,4 holding that he was eligible for getting land in the alternate which order was challenged in' appeal and the case was again remanded through order dated 4-10-1987 for deciding the question of eligibility of the petitioner. This order as observed above was passed in the presence of learned counsel for contesting respondents, therefore, the argument raised faintly by him that the original application of the petitioner was not submitted in time cannot be entertained and has no merits. As a matter of fact with the passing of order dated 4-10-1987 and the remand of the case on 2-3-1986 the legal efficacy of order dated 16-8-1987 was nullified and the objection that the petitioner did not apply in time, could not be raised. Even after that the Collector did not decide the case of the petitioner and in spite of a direction having been issued by the Board of Revenue on 28-2-1988 that no allotment should be made and the record should be sent to it for examining the legality of orders already passed, formal order dated 18-4-1988 for allotment of land in dispute was passed in favour of respondent No,4 which in the light of the above facts was a nullity as also having been passed without determining the rights of the petitioner alongwith those of respondent No,4. The conveyance-deed issued on 12-5-1988 was also void being superstructure raised on the void order earlier passed. The Commissioner was not divested of the jurisdiction to decide the appeal of the petitioner against the order dated 18-4-1988 on the basis of which the conveyance-deed was issued because in fact it was the legality of order dated 18-4-1988 which was to be decided in the said appeal and bar of jurisdiction as regards cancellation of conveyance-deed was not operative. If order dated 18-4- 1988 had been set aside, the conveyance-deed would automatically have been nullified having no independent legal sanction and being superstructure of order dated 18-4-1988.
5. The Board of Revenue while dismissing the revision petition of the petitioner on 18-2-1991 and his review application through order dated 11-8-1992 also did not apply its judicial mind to the facts and circumstances of this case as it has altogether been ignored that the case of the petitioner never received consideration of the authorities. The case of respondent No,4 it may be prominently over-emphasised could not have been taken in isolation and decided in the absence of the petitioner and before disposal of his case alongwith the same. The petitioner has been condemned unheard and his case as regards eligibility to get the land as alternate land has not decided which was to be adjudicated upon in the light of the policy and instructions issued on the subject.
6. The orders dated 16-8-1987, 18-4-1988 passed and the conveyance deed dated 12-5-1988 issued by the Collector and order dated 17-4-1989 passed by the Commissioner and also orders dated 18- 2-1991 and 11-8-1992 passed by the Board of Revenue are not sustainable for the foregoing reasons having suffered from acute misconception of true position of law and facts, illegality and jurisdictional defect as also failure to exercise jurisdiction to determine the case of the petitioner alongwith the case of respondent No,4.
7. The writ petition is accepted. The said orders are hereby declared to have been passed without lawful authority and of no legal effect and quashed. The case is remanded to the Collector/Colony Assistant whosoever is vested with the power to decide, to determine the question of eligibility of petitioner and respondent No,4 to get land as alternate land and the extent to which they are entitled to. In case both the parties are found to be eligible to get alternate land in lieu of land of which they were deprived, both of them shall be given land from the available State land. In that case it shall be determined as to which of the parties is entitled to get the land in dispute in preference to the other. Since no other person has challenged the impugned orders before this Court, therefore, the application of no other person qua the land in dispute shall be taken into consideration alongwith the cases of petitioner and respondent No,4. There will be no order as to costs. The sealed record has been handed over to Faiz Ahmed, Colony Clerk, D.C. Office, Toba Tek Singh.